Software Rights Archive, LLC v. Google Inc. et al

Filing 129

RESPONSE in Opposition re 124 SEALED MOTION SUGGESTION TO REFER BANKRUPTCY ISSUES TO BANKRUPTCY COURT OR, IN THE ALTERNATIVE, MOTION FOR LEAVE TO FILE RESPONSE TO PLAINTIFF'S SUR-RESPONSE BRIEF filed by Software Rights Archive, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Kaplan, Lee)

Software Rights Archive, LLC v. Google Inc. et al

Doc. 129

IN T H E U N I T E D STATES D I S T R I C T C O U R T F O R THE EASTERN DISTRICT OF TEXAS M A R S H A L L DIVISION S O F T W A R E RIGHTS ARCHIVE, L L C , Plaintiff, v. G O O G L E INC., YAHOO! INC., l A C S E A R C H & M E D I A , INC., A O L L L C , and L Y C O S , INC., Defendants.

§ § § § C i v i l A c t i o n No. 2 : 0 7 - c v - 5 1 l - C E § § § § J U R Y TRIAL D E M A N D E D § § §

OPPOSITION TO DEFENDANTS' "SUGGESTION T O REFER BANKRUPTCY I S S U E S T O B A N K R U P T C Y COURT" AND O P P O S I T I O N T O D E F E N D A N T S ' A L T E R N A T I V E M O T I O N F O R L E A V E T O F I L E T H I R D B R I E F ON S T A N D I N G

Over six months after filing their Motion to Dismiss for lack o f standing in this Court, Defendants now ask this Court to stand down and refer "bankruptcy-related issues" to the bankruptcy court despite the facts that: · · · · this plea contradicts Defendants' prior argument to this Court that the bankruptcy court lacked jurisdiction over the patents at issue; the bankruptcy court has rejected these very same arguments and deferred to this Court's resolution o f the standing issue; there are no complex bankruptcy-related issues to determine, since the application o f res j u d i c a t a is not a specialized area that a bankruptcy court is uniquely suited to resolve; the standing issue has been fully briefed in this Court (after document and deposition discovery) and is ripe for resolution, whereas the parties would have to duplicate their extensive efforts to present the issues to another court; and Defendants cite no authority for the proposition that this Court can or should refer discrete issues to a bankruptcy court for guidance.

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This Court should determine whether Plaintiff Software Rights Archive, LLC ("SRA") has valid title to the patents at issue. Defendants' latest dilatory motion should be denied.

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The Court should also deny Defendants' motion for leave to file yet another brief, since the arguments raised in that b r i e f could have been raised earlier and are frivolous. l
I. T h i s C o u r t , n o t t h e b a n k r u p t c y c o u r t , is t h e p r o p e r f o r u m f o r r e s o l u t i o n o f t h e s t a n d i n g issue. A. D e f e n d a n t s ' " S u g g e s t i o n " is a n i m p r o p e r c o l l a t e r a l a t t a c k o n t h e b a n k r u p t c y c o u r t ' s ruling.

Defendant Yahoo!'s alliance partner, Sherwood Finance, made these same arguments through the same counsel to the bankruptcy court in a hearing held on December 17, 2008. 2 Sherwood Finance urged the bankruptcy court to decide the title question, arguing that the bankruptcy court was better suited to resolve the title question than this Court or the District Court for the Northern District o f California (the latter a forum chosen by Defendants). (Tr. o f 12/17/2008 Bankr. Ct. Hrg., Docket No. 123, at 10,20.).

Although Defendants' counsel conferred with the undersigned as to Defendants' motion for leave to file another brief, Defendants' counsel failed to inform the undersigned that Defendants would be requesting, as their primary relief, a referral to the bankruptcy court, thereby violating Local Rule CV -7(h).
2 Since Plaintiff filed this case in November 2007, Defendants have multiplied the proceedings without justification. In July 2008 all the Defendants in the case at bar filed a mirror-action declaratory judgment suit in the Northern District o f California, against SRA and two other defendants, based on the same standing arguments they raised in this Court. Google, Inc., AOL LLC, Yahoo! Inc., IAC Search & Media, Inc., a n d Lycos, Inc. v. L. Daniel Egger, Software Rights Archive, LLC, a n d Site Technologies Inc., Civil Action No. 08-3172, in the U.S. District Court for the Northern District o f California, San Jose Division. A motion to dismiss, transfer (to the Eastern District o f Texas) or stay is set for February 27, 2009. In the meantime, extensive discovery occurred in this Court, including docum